Territory Hawai`i v. Kelley
| Decision Date | 07 June 1949 |
| Docket Number | NOS. 2743 AND 2744.,S. 2743 AND 2744. |
| Citation | 38 Haw. 433 |
| Parties | TERRITORY OF HAWAII v. ROY C. KELLEY. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. C. H. BUCK, JUDGE.
Syllabus by the Court
Before question of constitutionality of a statute or ordinance can be properly raised in supreme court on interlocutory bill of exceptions to an order overruling a demurrer, question must be called to attention of trial court and ruled upon, and proper exceptions to such rulings must have been preserved.
The supreme court will not pass upon a constitutional question on interlocutory bill of exceptions and declare a statute or ordinance invalid unless a decision upon that very question is necessary to the determination of the cause.
A. K. Trask (also on the briefs) for defendant.
C. M. Hite, Public Prosecutor, and M. Chan, Assistant Public Prosecutor ( M. Chan only on the brief), for the Territory.
This is an interlocutory bill of exceptions to the order of the trial judge overruling demurrers in two criminal cases wherein the defendant is charged with misdemeanors in violation of section 7-A of ordinance number 941 of the City and County of Honolulu.
The specification of errors solely challenges the trial court's “jurisdiction of the complaints herein” on the ground that the ordinance is invalid and void. But this ground as a matter of law presupposes that the trial court had jurisdiction of the subject matter, otherwise the court would not be competent to pass upon the validity of the ordinance alleged to have been violated. In correlation, the grounds of demurrer do not assert that the trial court at the time did not have jurisdiction of the offenses and of the person of the defendant. Hence the ground of invalidity does not support the challenge but, on the contrary, operates to nullify any efficacy it may have. Further, there is no merit in the challenge itself, the trial court having jurisdiction of all criminal offenses cognizable under the laws of the Territory and those causes that may be properly before it on appeal from any other court according to law (see R. L. H. 1945, § 9647) or, as in this case, those criminal causes committed to it by the district court on demand for a jury trial (see R. L. H. 1945, § 9676). Consequently, the challenge of jurisdiction premised as it is upon a ground presupposing jurisdiction is frivolous, and this state of affairs extends to the contentions upon which the ground of invalidity is posited.
One contention advanced for the invalidity of the ordinance is its alleged inconsistency and conflict with chapters 133 and 169 of Revised Laws of Hawaii 1945, dealing generally with licenses and liens, respectively. But the ordinance specifically is one “to regulate rents” as an exercise of the power conferred upon the board of supervisors of Honolulu by the legislature (see R. L. H. 1945, §...
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Territory Hawai`i v. Alford
...question was not raised in the court below, and at the first opportunity, it cannot be raised for the first time in this court. (Territory v. Kelley, 38 Haw. 433; Territory v. Tsutsui, 39 Haw. 287.) Objections to the testimony of defendant's wife may be summarized as follows: (1) that the o......